' This Second Appeal under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the said Ordinance) has been filed by Messrs Sultan Ahmad Sami Ahmed and brothers against the order, dated 4-8-1979, passed by VIIIth Additional District Judge, Karachi (in Rent Appeal No,505/77) whereby he dismissed their appeal.
2. Brief facts are that appellants are the tenants of the respondent in respect of shop on Plot No,S.B.1/13 and Shop No,2, Frere Street Saddar, Karachi, at the monthly rent of Rs,300 and Rs, 45 respectively since 10-5-1971. The appellants filed an application under section 4 of the said Ordinance in which they stated that rent of the shops is exorbitant and excessive therefore fair rent be fixed.
3. The Rent Controller by his order, dated 23-8-1973, dismissed the application. The appellants went in appeal against that order and Vth Additional District Judge vide order, dated 20,-8-1975, set aside the order and remanded the case back to the Rent Controller. The Rent Controller once again by an order, dated 3-11-1977 dismissed the application of appellants who again went in appeal but could not succeed and VIIIth Additional District & Sessions Judge, by order, dated 4th July, 1978 dismissed their appeal and now they have come in second appeal against the findings of VIIIth.
Additional District & Sessions Judge, Karachi.
4. Mr. A.K.M. Idrees has contended that appellants filed the assessment by the Municipal Corporation for the years 1941-42 and also for the years 1942-43, according to which rent of the shop in December, 1942 was Rs,35 per month and according to the latest assessment of the Excise and Taxation the rent comes to Rs,40 which includes the rent of the shop and attached premises.
His contention is that Rent Controller has ignored the provisions of section 4(7)(b) of the said Ordinance and has failed to fix the fair rent of the shop which he was bound to do so.
5. Mr. Sher Afghan Advocate appearing for the respondent has argued that section 4(7)(b) of the said Ordinance is not applicable in this case and that appellant failed to substantiate his allegations. He has also argued that all the points have been considered by the Rent Controller in his order. He has cited PLD 1971 Lah. 210 and PLD 1963 SC 466.
6. The Rent Controller recorded the evidence of the appellant in which he has stated that he is a tenant of the premises since May, 1971 and the rent of the shop is Rs,300 and of W.C. attached to shop at Rs,45 per month. The Rent Controller has fully discussed about the documents filed by the landlord in connection with assessme nts of Annual Rental value of the premises made by K.M.C. & Excise and Taxation Department. The Rent Controller has himself examined the record right up from 1941 till 3-11-1977 and came to the conclusion that contention of the appellant is unjustified.
7. Looking to the circumstances' that the rent prevalent in the neighborhood for similar properties, the appellant himself made an agreement by which he was paying the rent of Rs,345 per month for the premises. The Additional District & Sessions Judge in his order has observed that it is an admitted position that the shop is situated in such a highly commercial place and the rate of goodwill is also very high this is why appellant executed agreement. The premises were also visited by Mr. Peswa ni Senior Civil Judge and in his inspection note he has stated that Shop No,1, is a big shop and in good condition and Shop No,2, is a small and also in good condition. These notes have bee, seen by learned Additional District Judge and has taken note of the documents in his judgment. The premises are situated in a highly commercial place and the rent was fixed by the parties with their own free consent. Both these orders have been passed on the basis of the evidence. In case reported in PLD 1971 Lah. 210 it has been held that section 4 of the Ordinance provides that Rent Controller shall take into consideration the rent of the same or a similar accommodation in similar circumstances prevailing in the locality during 12 months prior to the 1st of January 1950 but this does not deprive the Controller from taking into consideration other factors in fixing the fair rent. It has further .been observed that there is no prohibition in the law for not taking into consideration any other factor, such as the one of a period of long stay of 20 years in the shop and its location in the most prosperous commercial area in the city. Regarding concurrent findings the case reported in PLD 1963 SC 466, provides guidelines. In this case there are two concurrent findings and I find no illegality or misreading of the evidence. Moreover this matter is pending since 1971, and the circumstances after 13 years has also changed which factor cannot be ignored. There are no merits in this second appeal which is dismissed with no order as to costs.